Dec 9, 2016 by

Just-passed bill stops short of banning abortion from the time a fetus’s heartbeat is detectable and may test the limits of constitutional protections of abortion

Women hold up signs during a women’s pro-choice rally on on 11 July 2013 in Washington, DC.
Women hold up signs during a women’s pro-choice rally in Washington DC. Photograph: Mark Wilson/Getty Images

The Ohio state legislature threw down the gauntlet this week to the supreme court, passing a new anti-abortion “heartbeat” bill that would ban terminations from as early as six weeks, the most severe restrictions in the country.

Ohio politicians say they were motivated to push through the bill by Donald Trump’s win, believing they might find a more friendly US supreme court that would uphold the law.

If passed by Governor John Kasich, the bill could serve as a test case for the limits of constitutional protections of abortion, and even for overturning the landmark decision Roe v Wade, which enshrines a woman’s right to choose abortion until the fetus is “viable” (between 24 and 28 weeks gestation). But activists on both sides of the issue doubt that strategy is likely to succeed, and say it could do more to harm the legal movement than help it.

The bill passed by the Ohio state legislature on Tuesday stops just short of banning abortion from the time a fetus’s heartbeat is detectable, which is usually around six weeks. The new law states that if a doctor terminates a pregnancy without listening for a heartbeat or when a heartbeat is audible, then the physician would be committing a fifth-degree felony and face up to a year in jail, disciplinary action and civil lawsuits.

Many women do not even realize they are pregnant at this early stage.

“If this law would take effect, it really is a flat-out abortion ban,” said Amanda Allen, senior state legislative counsel at the Center for Reproductive Rights.

Many other states have also tried to get “heartbeat bills” through in the past. North Dakota and Arkansas state legislature passed similar laws in March 2013, however the eighth circuit appellate court ruled them unconstitutional in 2015 and the laws were never enacted.

Ohio lawmakers have considered their own bill in the past. But lawmakers said that Trump’s election and a free seat on the supreme court gave them new impetus for the bill and make it more likely that the bill would be upheld in the courts.

“A new president, new supreme court appointees change the dynamic, and there was consensus in our caucus to move forward,” said senate president Keith Faber.

But despite lawmakers’ views, many anti-abortion activists in the state are not celebrating the move.

Mike Gonidakis from Ohio Right to Life, an anti-abortion lobby group, says his group is officially “neutral” on the bill because he fears the law would be struck down, after an expensive and lengthy court battle. He believes the six-week ban would be so dramatic that even the supreme court would vote 5-4 to strike it down, even if another conservative justice were confirmed to replace the vacancy on the court.

“You have to be patient and strategic with the courts,” said Gonidakis.

“That doesn’t even take into account millions of dollars Ohio would be forced to pay the lawyers for Planned Parenthood and the ACLU,” he added.

Gonidakis thinks it may even strengthen Roe v Wade.

“We will be inviting nothing more than damage and danger to all we’ve accomplished for the past 40 years,” said Gonidakis.

And while some are worried that the law sets up a test case that might become a referendum on the supreme court’s Roe v Wade president, Ohio’s arm of the American Civil Liberties Union says it’s ready to declare a legal challenge if the bill becomes law. Allen says she’s not too worried the legal challenge would have an adverse effect at the high court, since another court has already judged the North Dakota and Arkansas laws unconstitutional.

“These types of bans are completely unconstitutional and have very little chance of standing up in court,” said Allen, noting that Roe v Wade has been settled law for over 40 years.

Ohio has tightened abortion restrictions in recent years, and this legislation was tacked on to an unrelated bill last minute in Ohio this week.

This was the third time Ohio attempted to pass it, after it failed in 2012 and 2014.

On Thursday, the Ohio state legislature passed another anti-abortion bill, which would ban abortion from 20 weeks. Currently 18 states have enacted some form of 20-week abortion ban, and Allen noted that lawmakers may be pushing the “heartbeat” bill as a red herring while the other, also controversial measure flies under the radar.

“That could certainly be part of the strategy,” noted Allen. “Both bans are prohibitions on abortion prior to viability and the US supreme court has been very clear that states may not do that.”

Kasich, who ran as a moderate during the Republican primaries but has signed several restrictions on abortion into law in the last few years, will have to decide whether to sign one or both bills into law, veto them, or ignore them, in which case they would automatically be enacted into law within a few weeks.

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